ACTIONS AGAINST THE POLICE: UNREASONABLE OBSTACLES TO OBTAINING REDRESS

Case Note on Nyika & Ors v Minister of Home Affairs & Ors HH-181-16 (“The Nyika Case”)

BY G. FELTOE, J REID-ROWLAND AND R. MATSIKIDZE

INTRODUCTION

The police force plays an important role in our society. Under section 219 of the Constitution the Police Service’s functions include—
•       detecting, investigating and preventing crime;

•       preserving the internal security of Zimbabwe; 

•       protecting and securing the lives and property of the people; 
•       maintaining law and order; and

•       upholding this Constitution and enforcing the law without fear or favour.

All these functions should be executed within the framework of relevant legislation governing the exercise of these functions and in accordance with the constitutional rights of citizens.

The police are given extensive legislative powers to carry out its legitimate functions. The problem is that their far-reaching powers are open to abuse or misuse and, not infrequently, police officers have abused or misused their powers resulting in serious violation of the rights of citizens.

As pointed out in the Nyika case, the police interact with the public on a daily basis and it is typically ordinary citizens who are the victims of violations of their rights arising out of abuse or misuse of police powers. Victims of police abuse will often be seeking redress for violations of some of their most fundamental human rights, such the right to life, liberty, bodily integrity, dignity and protection of their property. The claims may include actions for unlawful arrest and detention, malicious prosecution, unlawful assault, unlawful causing of injury or death, unlawful deprivation or destruction of their property and other human rights violations.¹ Given the serious nature of these claims, it is vitally important that these matters are dealt with by the courts, the police are held accountable for such abuses and appropriate redress is given to victims.

The aggrieved parties have a legal right to bring delictual claims against the offending police officers and, where the police officers commit the delicts in the course of their employment as police officers, they can also claim against the Ministry in charge of the police on the basis of vicarious liability.² Suing the individual police officers responsible and making them pay damages acts as a deterrent against such misconduct on the part of police officers. These cases serve to alert the police to the legal consequences of abuse or misuse of their powers and show the public that such misconduct will not be tolerated by the courts.

Although the legal right to obtain redress exists on paper, many victims may not be aware of their right to sue the police and even if they are aware, they may lack the financial resources to engage lawyers to bring actions and may not be able to obtain state legal aid which is limited in its scope. The civic organisations offering legal assistance to victims of police abuse do not have the capacity to offer such assistance to victims all around the country. Victims may try to bring their cases to court without legal assistance but they face often insurmountable obstacles because of ignorance of the complex procedural and technical requirements for such claims.

What the Nyika case clearly establishes is that no unreasonable further obstacles should be placed in the paths of litigants seeking remedies for these wrongs. It deals with whether the special legislative provisions stipulating a shorter period of prescription for actions against the police create unfair barriers for persons seeking redress and whether these provisions violate fundamental constitutional rights of litigants.

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1.       The shortened prescription period also applies to other legal actions against the police (such as delictual actions for injury caused by negligent driving) and actions for breach of contract.

2.                     Recent cases in South Africa have expanded the scope of liability of the State for actions on the part of police officers. For instance, in the case of K v Minister of Safety and Security 2005 (6) SA 419 (CC) a woman was brutally raped by three uniformed policemen who had given her a lift. With reference to constitutional provisions relating to the functions of the police the Constitutional Court found the State delictually liable for the crime committed by the police officers.